NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4229-12T3

SHARON BEN-HAIM,

Plaintiff-Appellant,

v.

TAL ITKIN, MIKI MOR and

ITKIN LAW FIRM,

Defendants-Respondents.

___________________________________________

Argued January 13, 2014 – Decided

Before Judges Ashrafi, St. John and Leone.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Docket No.

L-8284-12.

Eric M. Mark argued the cause for appellant.

Rosaria A. Suriano argued the cause for

respondents (Meyner and Landis, LLP,

attorneys; Ms. Suriano, on the brief).

PER CURIAM

Plaintiff Sharon Ben-Haim appeals from the April 22, 2013

order of the Law Division vacating a prior default judgment

against defendants Tal Itkin, Miki Mor and The Itkin Law Firm

(Law Firm), and dismissing his complaint for lack of personal

jurisdiction.

June 18, 2014

A-4229-12T3

2

We begin with a brief synopsis of the relevant facts as

gleaned from the parties' submissions, noting that the record

before us was made without jurisdictional discovery.

Plaintiff and his estranged wife Oshrat Ben-Haim (Oshrat),

not party to this matter, have been embroiled in contentious

divorce proceedings. Defendant Itkin is a lawyer licensed to

practice family law in Israel. Defendant Law Firm is Itkin's

law practice in Israel. Defendant Mor is an Israeli-licensed

attorney and former employee of the Law Firm. Neither Itkin nor

Mor are licensed to practice law in New Jersey or any other

jurisdiction in the United States. Defendants do not maintain a

mailing address or place of business in New Jersey, nor do they

have any assets located in the State.

In 2010, Oshrat initiated religious and civil divorce

proceedings in Israel against plaintiff, which he contested.

Defendants represented Oshrat in those actions, and maintain

that any alleged exposure to plaintiff would have occurred

solely as a result of their representation of Oshrat in Israel.

In 2011, plaintiff filed an action against Oshrat in

Superior Court, Family Part, Bergen County, seeking to enjoin

the divorce proceedings previously filed in Israel. Oshrat, an

Israeli resident, did not appear or otherwise participate in

that matter, which resulted in the entry of an order on January

A-4229-12T3

3

6, 2012, enjoining Oshrat from pursuing religious or civil

divorce proceedings, child support, alimony or related actions

anywhere other than New Jersey. Plaintiff asserts in his

complaint in this action that on August 25, 2011, the Family

Part judge "found that the judicial actions of the Rabbinical

Court in Israel will not be afforded comity, and that the

[Israeli] Supreme Court's judgment was irrational, contrary to

the facts and unworthy of comity."1

The order of the Family Part

was rejected by a rabbinical court in Israel, which issued

orders compelling plaintiff's appearance in Israel.

Thereafter, in 2012, plaintiff and other individuals

commenced an action in the United States District Court for the

District of New Jersey against high-ranking Israeli officials,

1

The alleged order and decision are not part of the record

before us. Further, the record does not disclose if the Family

Part decided the threshold inquiry of "whether the underlying

dispute is a secular one, capable of review by a civil court, or

an ecclesiastical one about 'discipline, faith, internal

organization, or ecclesiastical rule, custom or law.'" McKelvey

v. Pierce, 173 N.J. 26, 45 (2002)(quoting Bell v. Presbyterian

Church, 126 F.3d 328, 331 (4th Cir. 1997)). When adjudicating

the merits of a claim requires a court to interpret any of these

religious tenets, the court must abstain for lack of subject

matter jurisdiction. Id. at 52. Where a dispute can be

resolved by the application of neutral principles alone, no

First Amendment issues arise. "'Neutral principles' are wholly

secular legal rules whose application to religious parties or

disputes does not entail theological or doctrinal evaluations."

Elmora Hebrew Ctr., Inc. v. Fishman, 125 N.J. 404, 414-15

(1991); Abdelhak v. Jewish Press Inc., 411 N.J. Super. 211, 224

(App. Div. 2009).

A-4229-12T3

4

including a justice of Israel's Supreme Court, two former

cabinet-level ministers and a judge of the Haifa Rabbinical

District Court. They also sued three non-profit charitable

entities, contending that they provided funds, and lobbied, for

policies that promote discrimination against fathers in the

Israeli Courts. In the fourth count of the complaint, they

contended that defendants aided and abetted an anti-suit

injunction and also intentional or negligent infliction of

emotional distress. That count was dismissed for a lack of

diversity jurisdiction. The District Court dismissed with

prejudice the balance of the matter for lack of subject matter

jurisdiction. See Ben-Haim v. Neeman, No. 12-CV-351(JLL) (D.N.J.

Jan. 24, 2013)(slip op.), aff'd, 543 Fed. App'x 152 (3d Cir. 2013).

On October 26, 2012, plaintiff filed the present suit

against defendants, accusing defendants of aiding and abetting

Oshrat's violation of the 2012 Family Part injunction and

committing various tortious acts against him.

In his complaint, plaintiff makes numerous allegations

concerning false or misleading statements by defendants to both

the civil and religious courts in Israel, which plaintiff

asserts have defamed him and caused him emotional distress.

Plaintiff also contends that defendants are in violation of the

anti-suit order in that defendants made numerous filings on

A-4229-12T3

5

behalf of Oshrat in both the civil and religious courts in

Israel in order to pursue Oshrat's actions for divorce, child

support and alimony. Plaintiff also contends that defendants

committed intentional infliction of emotional distress against

him by pursuing orders from the Israeli rabbinical court and

obtaining a ne exeat restraining order from that court which

prevented him from leaving Israel. Plaintiff further alleges

that defendants requested and obtained a ruling from the

rabbinical court for sanctions against plaintiff prohibiting

members of the religious community from doing plaintiff any

favors, talking to him, praying with him, negotiating with him,

or burying him, and allowing Oshrat to publish plaintiff's name,

picture, and description as a criminal in New Jersey and asking

the public to assist him in granting Oshrat a divorce.2

The

2

The ruling of the State of Israel, Regional Rabbinical Court of

Haifa, dated July 17, 2012, states in pertinent part:

This is an extremely complicated case of an

"Aguna" (a woman bound in marriage by a

husband who refuses to grant a divorce).

[Plaintiff] was ordered to grant a divorce

back in [September 7, 2012], and since then

he made the wife "Aguna," resides outside

Israel in the [S]tate of New Jersey, lives

his own life, pulling every trick in the

book to avoid the warrant, while the wife in

Israel eagerly awaits the divorce.

Since [plaintiff] refuses to obey the

warrant, he may be called a criminal and his

(continued)

A-4229-12T3

6

rabbinical court also ordered that its ruling would be sent to

plaintiff's community rabbi. Putting aside defendants'

representation of Oshrat before the Israeli civil and religious

courts, there is no factual support in the record that

defendants undertook any activity in New Jersey in this matter.

Plaintiff does allege that defendants caused the Rabbinical

Court to communicate with New Jersey parties, but there is no

allegation that defendants directly communicated with anyone in

New Jersey.

(continued)

sentence will be as clarified in the book of

"Shulchan Aruch," Yoreh Da'at," mark 334.

Anyone who can is obligated to assist in

saving a woman from being "Aguna," therefore

must avoid from doing [plaintiff] any favors

and/or talk to him and/or pray with him

and/or negotiate with him and/or bury him.

As specified in the RMA.

The court approves the wife's request and

therefore allows to publish the name and

details and picture of [plaintiff] in the

community of Fair Lawn, New Jersey and/or

anywhere else without any limitations,

alongside an announcement which clarifies

that anyone who knows anything of his

whereabouts and can assist in making him

grant a divorce, is hereby ordered to do so,

while anyone assisting him to continue in

making the wife "Aguna" is considered as

aiding a criminal offense.

A-4229-12T3

7

According to the parties' representations, a default

judgment was entered against defendants on January 29, 2013,3

which they promptly challenged. In a subsequent order vacating

that default judgment, Judge Charles E. Powers, Jr. determined

that defendants had meritorious defenses to the suit,

specifically lack of jurisdiction and failure to state a claim.

The judge also found that enforcing the default judgment against

defendants would be unjust. The judge also dismissed

plaintiff's complaint "for lack of personal jurisdiction."

Accompanying the order, the judge issued a comprehensive written

opinion. Plaintiff contends that the judge erred in vacating

the default judgment, and erred in that "personal jurisdiction

exists over the defendants."

We conclude that any challenge to the judge's order

vacating the default judgment is without sufficient merit to

warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Although the standard that governed the judge's decision on

a motion to dismiss requires an assumption of the truth of

plaintiff's allegations until resolved at the conclusion of a

plenary hearing, see, e.g., Indep. Dairy Workers Union v. Milk

Drivers Local 680, 23 N.J. 85, 89 (1956); Seidenberg v. Summit Bank,

3

We note, however, that no such order is contained in the

record.

A-4229-12T3

8

348 N.J. Super. 243, 249-50 (App. Div. 2002), we do not find the

facts in dispute to be material to the outcome of our decision.

As an initial matter, we note that plaintiff makes numerous

factual assertions in his brief that refer to supporting

documentation that he has not submitted on appeal, and without

which his assertions cannot be tested. The absence of such

documentation, and of explanations that expressly cite to it,

leaves his claims of certain actions on the part of defendants

insufficiently developed for meaningful assessment. See Dempsey

v. Alston, 405 N.J. Super. 499, 519 (App. Div.), certif. denied,

199 N.J. 518 (2009)(an appellate court cannot credit a

"contention" for which a party "failed to provide any

evidence"). Further, plaintiff makes reference to specific

facts in the record which do not appear as referenced in his

brief. State v. Hild, 148 N.J. Super. 294, 296 (App. Div.

1977)(noting that, under Rule 2:6-9, an appellate court need not

make its own "independent examination of the record" on behalf

of parties who fail to support their legal arguments with

"appropriate" references to the record). However, we find the

record sufficient to address plaintiff's arguments concerning in

personam jurisdiction over defendants, to which we now turn.

On appeal, we review the law de novo and owe no deference

to the interpretative conclusions reached by the motion court.

A-4229-12T3

9

Aronberg v. Tolbert, 207 N.J. 587, 597 (2011). A ruling on

jurisdictional issues is similarly reviewed de novo, as the

question of in personam jurisdiction is a question of law.

Mastondrea v. Occidental Hotels Mgmt. S.A., 391 N.J. Super. 261

(App. Div. 2007)(citing Vetrotex Certainteed Corp. v. Consol.

Fiber Glass Prods. Co., 75 F.3d 147, 150 (3d Cir. 1995)).

New Jersey's long-arm jurisprudence permits our courts to

exercise personal jurisdiction over out-of-state defendants to

the extent permitted by the federal Constitution. See R. 4:4-

4(b)(1); State ex rel. McCormac v. Qwest Commc'ns Int'l Inc.,

387 N.J. Super. 487, 498 (App. Div. 2006), cert. denied sub nom.

Szeliga v. N.J. Dep't of Treasury, 550 U.S. 935, 127 S. Ct. 2263,

167 L. Ed. 2d 1092 (2007), Anschutz v. N.J. Dep't of Treasury,

550 U.S. 935, 127 S. Ct. 2262, 167 L. Ed. 2d 1092 (2007).

Two fundamental principles are consistently applied in the

personal jurisdiction cases decided by the United States Supreme

Court under the federal Due Process Clause since International

Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed.

95 (1945). First, "due process requires only that in order to

subject a defendant to a judgment [in personam], if he be not

present within the territory of the forum, he have certain

minimum contacts with it[.]" Id. at 316, 66 S. Ct. at 158, 90

L. Ed. at 102. Second, the minimum contacts must be of a nature

A-4229-12T3

10

and extent "such that the maintenance of the suit does not

offend 'traditional notions of fair play and substantial

justice.'" Ibid. (quoting Milliken v. Meyer, 311 U.S. 457, 463,

61 S. Ct. 339, 343, 85 L. Ed. 278, 283 (1940)).

"[T]he requisite quality and quantum of contacts is

dependent on whether general or specific jurisdiction is

asserted." Citibank, N.A. v. Estate of Simpson, 290 N.J. Super.

519, 526 (App. Div. 1996). General jurisdiction may be obtained

where the defendant's contacts with the forum state are

"'continuous and substantial,'" regardless of where the cause of

action arose. Wilson v. Paradise Vill. Beach Resort & Spa, 395

N.J. Super. 520, 528 (App. Div. 2007)(quoting Charles Gendler &

Co. v. Telecom Equip. Corp., 102 N.J. 460, 472 (1986)).

Specific jurisdiction, which plaintiff invokes here, "'is

established when a defendant's acts within the forum-state give

rise to the cause of action.'" McDonnell v. Illinois, 319 N.J.

Super. 324, 333 (App. Div. 1999)(quoting Jacobs v. Walt Disney

World, Co., 309 N.J. Super. 443, 452 (App. Div. 1998)), aff'd,

163 N.J. 298 (2000)).4

4

We need not address the United States Supreme Court's recent

decisions in Daimler AG v. Bauman, 571 U.S. __, 134 S. Ct. 746,

187 L. Ed. 2d 624 (2014); J. McIntyre Machinery of Am., Ltd. v.

Nicastro, 564 U.S. __, 131 S. Ct. 2780, 180 L. Ed. 2d 765

(2011); and Goodyear Dunlop Tires Operations, S.A. v. Brown, 564

U.S. __, 131 S. Ct. 2846, 180 L. Ed. 2d 796 (2011), because

(continued)

A-4229-12T3

11

In the context of specific jurisdiction, we "focus on 'the

relationship among the defendant, the forum, and the

litigation.'" Blakey v. Cont'l Airlines, Inc., 164 N.J. 38, 67

(2000) (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S. Ct.

2569, 2579, 53 L. Ed. 2d 683, 698 (1977)). Absent territorial

presence in the forum, "'it is essential that there be some act

by which the defendant purposefully avails itself of the

privilege of conducting activities within the forum state, thus

invoking the benefit and protection of its laws.'" Waste Mgmt.

v. Admiral Ins. Co., 138 N.J. 106, 120 (1994)(quoting Hanson v.

Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1240, 2 L. Ed. 2d

1283, 1298 (1958)). The unilateral activities or actions of a

plaintiff are not enough. See Blakey, supra, 164 N.J. at 67.

The purposeful availment requirement ensures that an out-

of-state defendant "will not be compelled to participate in

litigation in a foreign jurisdiction 'on the basis of random,

fortuitous, or attenuated contacts or as a result of the

unilateral activity of some other party.'" YA Global Invs.,

L.P. v. Cliff, 419 N.J. Super. 1, 9 (App. Div. 2011)(quoting

Waste Mgmt., supra, 138 N.J. at 121). The "mere foreseeability"

that defendant's conduct could have "some effects in the forum

(continued)

those cases apply primarily to circumstances involving general,

rather than specific, jurisdiction.

A-4229-12T3

12

state" is not sufficient to establish jurisdiction. Bovino v.

Brumbaugh, 221 N.J. Super. 432, 436 (App. Div. 1987). Rather,

"'[t]he question is whether the defendant's [purposeful] conduct

and connection with the forum state are such that he should

reasonably anticipate being ha[i]led into court there.'"

Blakey, supra, 164 N.J. at 67 (quoting Lebel v. Everglades

Marina, Inc., 115 N.J. 317, 324 (1989)).

This inquiry must be conducted on a case-by-case basis.

See Shah v. Shah, 184 N.J. 125, 138 (2005). In particular, the

court should consider:

[T]he burden on the defendant, the interests

of the forum State, and the plaintiff's

interest in obtaining relief. It must also

weigh in its determination "the interstate

judicial system's interest in obtaining the

most efficient resolution of controversies;

and the shared interest of the several

States in furthering fundamental substantive

social policies."

[Asahi Metal Indus. Co. v. Superior Court of

Cal., 480 U.S. 102, 113, 107 S. Ct. 1026,

1033, 94 L. Ed. 2d 92, 105 (1987) (quoting

World-Wide Volkswagen Corp. v. Woodson, 444

U.S. 286, 292, 100 S. Ct. 559, 564, 62 L.

Ed. 2d 490, 498 (1980)).]

Finally, where jurisdiction is at issue, the burden is on

plaintiff to "allege or plead sufficient facts" to warrant the

court's exercise of jurisdiction. Blakey, supra, 164 N.J. at

71. This may be accomplished by way of "'sworn affidavits,

certifications, or testimony.'" Jacobs, supra, 309 N.J. Super.

A-4229-12T3

13

at 454 (quoting Catalano v. Lease & Rental Mgmt. Corp., 252 N.J.

Super. 545, 547-48 (Law Div. 1991)).

The issue before us is whether plaintiff met the threshold

burden of establishing defendants' minimum contacts with New

Jersey to warrant our exercise of jurisdiction. It is

undisputed that defendants neither reside nor do business in New

Jersey, and that the lawyers and Law Firm operate in Israel

without soliciting business here. The significant events, or

non-events, that are at the core of plaintiff's contentions all

involve Israeli actors and Israeli law. The only link to New

Jersey is plaintiff's residence and his action in the Family Part.

We conclude that the circumstances in this case are closely

analogous to the situation in Reliance National Insurance Co. v.

Dana Transportation, Inc., 376 N.J. Super. 537 (App. Div. 2005),

where we found no minimum contacts by Florida attorneys to

warrant our exercise of in personam jurisdiction. Id. at 549-50.

Here, Itkin and her Law Firm were retained to represent Oshrat in a

matrimonial matter in Israel. Plaintiff contends that defendants

are "aiding and abetting Oshrat's ongoing violation of the [Family

Part] Anti-Suit Order because without their assistance Oshrat

would not be able to properly litigate in the Israeli courts."5

5

We need not address whether this is a cognizable cause of

action or whether the litigation privilege would provide a

(continued)

A-4229-12T3

14

Plaintiff relies on Waffenschmidt v. Mackay, 763 F.2d 711

(5th Cir. 1985), cert. denied, 474 U.S. 1056, 106 S. Ct. 794, 88

L. Ed. 2d 771 (1986), in support of his contention that personal

jurisdiction exists over a person who knowingly and actively

aids and abets a party in violating a court order on the basis

of a "super contact" with that forum. Id. at 714.

Waffenschmidt involved the jurisdiction of the United States

District Court for the District of Mississippi to enforce its

injunctive order against residents of Texas. Id. at 715. The

Court of Appeals for the Fifth Circuit stated that the district

court had personal jurisdiction over the Texas defendants

because "the mandate of an injunction issued by a federal

district court runs nationwide." Id. at 716. The case had

nothing to do with jurisdiction over a party that is a resident

of a foreign country and has not submitted itself to the

jurisdiction of a court in the United States.

Furthermore, in Reebok International, Ltd. v. McLaughlin,

49 F.3d 1387, (9th Cir.), cert. denied, 516 U.S. 908, 116 S. Ct.

276, 133 L. Ed. 2d 197 (1995), the United States Court of

Appeals for the Ninth Circuit distinguished Waffenschmidt and

held that the district court did not have personal jurisdiction

(continued)

defense. See Loigman v. Twp. Comm. of Middletown, 185 N.J. 566,

583-84 (2006).

A-4229-12T3

15

over a foreign bank that had complied with the banking laws of

its own country, although its actions were in violation of the

district court's injunction. Id. at 1391-92, 1395.

Here, plaintiff is suing the defendants for defamation and

other causes of action based on their conduct in litigation in a

foreign country and in accordance with that country's laws.

Even if we were to apply the "super contact" theory, plaintiff

would not fit within its scope. Accordingly, personal

jurisdiction cannot be based on the aiding and abetting of the

violation a court order argument in this private suit.

Plaintiff further contends that defendants, in the course

of representing Oshrat, made defamatory statements in Israel

which "caused the [Israeli] rabbinical court to issue statements

to Plaintiff's religious community in Fair Lawn, New Jersey,"

seeking certain religious and personal constraints on him.

First, we note that these allegations have no real basis in the

record. No transcripts or certifications based upon personal

knowledge of defendants' alleged defamatory statements to the

Israeli courts are part of the record. Plaintiff has also not

demonstrated that a factual statement by an attorney to an

Israeli tribunal is sufficient evidential support for a court's

decision.

A-4229-12T3

16

Second, the conduct allegedly giving rise to the tort

causes of action, the purported misrepresentations and malicious

activities in various Israeli civil and religious courts, took

place entirely before Israeli tribunals. The only conduct

having any link to New Jersey is the religious ruling sent by

the rabbinical court to Fair Lawn. We find that connection

unavailing for the exercise of jurisdiction over defendants.

As the United States Supreme Court recently reaffirmed, due

process requires a "substantial connection" between a

defendant's "suit-related conduct" and the forum state, and such

relationship "must arise out of contacts that the 'defendant

himself' creates with the forum [s]tate." Walden v. Fiore, __

U.S. __, __, 134 S. Ct. 1115, 1122, 188 L. Ed. 2d 12, 20

(2014)(where Nevada residents brought suit in Nevada against a

non-resident federal agent arising from an illegal seizure in a

Georgia airport, finding no personal jurisdiction because agent

had no jurisdictionally significant contacts in Nevada, all

relevant conduct occurred entirely in Georgia and "mere fact

that his conduct affected plaintiffs with connections to

[Nevada]" was insufficient). The minimum-contacts inquiry is

"defendant-focused" and may not be satisfied solely by

establishing contacts between the plaintiff or third parties and

the forum state. Ibid.; see also Helicopteros Nacionales de

A-4229-12T3

17

Colombia, S.A. v. Hall, 466 U.S. 408, 417, 104 S. Ct. 1868,

1873, 80 L. Ed. 2d 404, 412 (1984)(explaining that the

"unilateral activity of another party or a third person is not

an appropriate consideration when determining whether a

defendant has sufficient contacts with a forum State to justify

an assertion of jurisdiction"); Hanson, supra, 357 U.S. at 253,

78 S. Ct. at 1239-40, 2 L. Ed. 2d at 1298 ("The unilateral

activity of those who claim some relationship with a nonresident

defendant cannot satisfy the requirement of contact with the

forum State.").

Even if, as plaintiff alleges, defendants requested and

procured the rabbinical letter by misleading information, the

ruling, and any defamatory material contained within it, is a

statement of the rabbinical court, not defendants. As

plaintiff's certification makes clear, the rabbinical court, and

not defendants, published the alleged defamatory statements in

New Jersey when it mailed the ruling to a rabbi in Fair Lawn.

Thus, we cannot agree that defendants, by advocating the

rabbinical court to independently transmit to New Jersey a

religious ruling on its own authority, established minimum

contacts with New Jersey. We find that to be "precisely the

sort of 'unilateral activity' of a third party that 'cannot

satisfy the requirement of contact with the forum State."

A-4229-12T3

18

Walden, supra, __ U.S. at __, 134 S. Ct. at 1126, 188 L. Ed. 24

(quoting Hanson, supra, 357 U.S. at 253, 78 S. Ct. at 1239-40, 2

L. Ed. 2d at 1298).

We further echo the Reliance court by concluding that New

Jersey has no interest in adjudicating whether the

representation by an Israeli law firm of an Israeli citizen in

Israel was actionable by the plaintiff. See Reliance, supra,

376 N.J. Super. at 551. In summary, this quarrel between

plaintiff and his wife's Israeli legal counsel has little

connection, much less a substantial connection, with the forum

state. We agree with the determination of Judge Powers, and

conclude that the demonstrable facts do not support the exercise

of personal jurisdiction over Itkin, Mor and the Law Firm. To

find otherwise would "'offend traditional notions of fair play

and substantial justice.'" Shah, supra, 184 N.J. at 138

(quoting Blakey, supra, 164 N.J. at 66).

Affirmed.

___________________________________________________

LEONE, J.S.C., (temporarily assigned), concurring.

I join in the court's opinion, except with regard to one of

plaintiff's allegations.

Plaintiff's complaint alleged that defendants falsely told

the Rabbinical Court in Israel that plaintiff was a criminal,

and "requested and obtained a ruling from the Rabbinical Court

for sanctions against Plaintiff instructing the public not to do

Plaintiff 'any favors and/or pray with him and/or negotiate with

him and/or bury him' and allowing Oshrat Ben-Haim to publish

Plaintiff's name, picture and description of him as a criminal

in New Jersey." Plaintiff alleged that the Rabbinical Court

sent its ruling to plaintiff's community rabbi in New Jersey,

allowing the publication of those instructions and the falsehood

that plaintiff was a criminal. Defendants thus "defamed

Plaintiff and committed libel and slander in the Israeli courts

and in Plaintiff's community in New Jersey." Plaintiff

supported those allegations with his certification and with the

Rabbinical Court's July 12, 2012 ruling and the postmarked

envelope to the New Jersey rabbi. Because I must hew to our

standard of review, see Citibank, N.A. v. Estate of Simpson, 290

N.J. Super. 519, 532 (App. Div. 1996), I cannot agree that these

unrebutted allegations have no real basis in the record.

A-4229-12T3

2

Such allegations satisfy the first requirement for specific

personal jurisdiction. "'The "minimum contacts" requirement is

satisfied so long as the contacts resulted from the defendant's

purposeful conduct . . . .'" Blakey v. Cont'l Airlines, 164

N.J. 38, 67 (2000). "'An intentional act calculated to create

an actionable event in a forum state will give that state

jurisdiction over the actor.'" Ibid. (quoting Waste Mgmt., Inc.

v. Admiral Ins. Co., 138 N.J. 106, 126 (1994), cert. denied, 513

U.S. 1183, 115 S. Ct. 1175, 130 L. Ed. 2d 1128 (1995)). "[I]f

defendants' statements are capable of a defamatory meaning and

were published with knowledge or purpose of causing harm to

plaintiff . . . within New Jersey, those intentional contacts

within the forum would satisfy the minimum contacts requirement

of International Shoe." Id. at 69.

The fact that defendants had never lived or worked in New

Jersey does not preclude the existence of minimum contacts. See

id. at 63 & n.12, 69. Rather, "the question is whether the

[defamatory statement] was expected or intended to cause injury

in New Jersey." Id. at 67. "'The fact that the actions causing

the effects in [New Jersey] were performed outside the State did

not prevent the State from asserting jurisdiction over a cause

of action arising out of those effects.'" Id. at 67-68

A-4229-12T3

3

(alteration by the Court) (quoting Calder v. Jones, 465 U.S.

783, 787, 104 S. Ct. 1482, 1485, 79 L. Ed. 2d 804, 810 (1984)).

Defendants' use of a third party, the Rabbinical Court, to

send the allegedly defamatory letter to New Jersey does not

insulate them from the resulting minimum contacts. In Calder, a

newspaper reporter and editor in Florida argued that California

lacked jurisdiction over them because they were not responsible

for their employer's circulation of their article in California.

Their argument failed because

their intentional, and allegedly tortious,

actions were expressly aimed at California.

. . . [T]hey knew that the brunt of that

injury would be felt by respondent in the

State in which she lives and works . . . .

Under the circumstances, petitioners must

"reasonably anticipate being haled into

court there" to answer for the truth of the

statements made in their article.

[Calder, supra, 465 U.S. at 789-90, 104 S.

Ct. at 1487, 79 L. Ed. 2d at 812.]

Defendants here similarly directed their activities at New

Jersey, and knew that any injury would be felt in New Jersey.

Indeed, they requested that the third party publish the alleged

defamation in New Jersey specifically to achieve that result.

Because defendants specifically asked the Rabbinical Court

to send the letter to New Jersey, they cannot claim that it was

a unilateral action of a third party. Although a defendant may

not be haled into a jurisdiction solely as a result of the

A-4229-12T3

4

"'unilateral activity of another party or a third person,'"

jurisdiction is proper "where the contacts proximately result

from actions by the defendant himself that create a 'substantial

connection' with the forum State." Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 2183-84, 85 L.

Ed. 2d 528, 542 (1985) (citation omitted). Here, defendants

requested, and therefore proximately caused, the court to send

the letter to New Jersey. Sending the letter was a "material

contact involving defendants because it was the response

designed to occur by the defendants." Accura Zeisel Mach. Corp.

v. Timco, Inc., 305 N.J. Super. 559, 569 (App. Div. 1997).

"Thus, plaintiff's cause of action resulted from the defendants'

purposeful conduct against him, a New Jersey resident, and not

his unilateral activities" or those of a third-party. Halak v.

Scovill, 296 N.J. Super. 363, 369-70 (App. Div.) (finding

minimum contacts in part because defendants filed a criminal

complaint in Maryland which resulted in a warrant being issued

for plaintiff's arrest in New Jersey), certif. denied, 150 N.J.

28 (1997).

Consequently, defendants created minimum contacts with New

Jersey when they caused the allegedly defamatory letter to be

sent here. "The tort of libel is generally held to occur

wherever the offending material is circulated." Keeton v.

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Hustler Magazine, Inc., 465 U.S. 770, 777, 104 S. Ct. 1473,

1479, 79 L. Ed. 2d 790, 799 (1984). Thus, New Jersey's

connection with this matter is hardly nonexistent. New Jersey

has an interest in both defending its residents against

defamation, and preventing defamation within its territory. See

id. at 776-77, 104 S. Ct. at 1479, 79 L. Ed. 2d at 798-99.

That defendants are lawyers in Israel does not exempt them

from the minimum contacts analysis. In Washington v. Magazzu,

216 N.J. Super. 23 (App. Div. 1987), we held that a Virginia

lawyer who sent two letters to a New Jersey attorney

"purposefully established minimum contacts within New Jersey."

Id. at 27. We refused to consider "the fact that the object of

[the lawyer's] New Jersey contacts was to perform services

exclusively in Virginia" in determining minimum contacts,

stating that it was a factor to be weighed in the second step of

the analysis. Id. at 28. Here, defendants purposefully caused

the allegedly defamatory missive to be sent to New Jersey.1

1

The court cites another malpractice action, Reliance Nat. Ins.

Co. In Liquidation v. Dana Transport, Inc., 376 N.J. Super. 537,

549-51 (App. Div. 2005). However, that case lacked "such

purposeful activity." Id. at 549. There, a Florida lawyer

brought Florida litigation for a Florida location of a business,

unaware that it had a New Jersey location, and thereafter

contacted New Jersey only when directed to do so. We could not

equate his "compliance with that directive to constitute

'purposeful availment' of the benefits and protections of

conducting activities in New Jersey." Id. at 549-50.

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Defendants' status as attorneys, like the legal and

religious status of the Rabbinical Court and rabbi, do not

obviate a finding of minimum contacts. Their status instead may

give rise to non-jurisdictional defenses, and are factors for

the second step of the jurisdictional analysis.

Turning to the second step of the jurisdictional analysis,

we must determine whether the maintenance of plaintiff's suit in

New Jersey offends "'traditional notions of fair play and

substantial justice.'" Blakey, supra, 164 N.J. at 65 (quoting

Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154,

158, 90 L. Ed. 95, 102 (1945)). The predominant factor here is

the international nature of this litigation. See Asahi Metal

Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 115-16, 107

S. Ct. 1026, 1033-34, 94 L. Ed. 2d 92, 106-07 (1987). "'Great

care and reserve should be exercised when extending our notions

of personal jurisdiction into the international field.'" Id. at

115, 107 S. Ct. at 1034, 94 L. Ed. 2d at 106 (citation omitted).

Courts must "consider the procedural and substantive policies of

other nations whose interests are affected by the assertion of

jurisdiction by [a State] court." Ibid.

[T]hose interests, as well as the Federal

Government's interest in its foreign

relations policies, will be best served by a

careful inquiry into the reasonableness of

the assertion of jurisdiction in the

particular case, and an unwillingness to

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7

find the serious burdens on an alien

defendant outweighed by minimal interests on

the part of the plaintiff or the forum

State.

[Ibid.]

Here, plaintiff bases his defamation claim on actions in

and an order from an Israeli rabbinical court. He asks a New

Jersey court to contravene the procedural and substantive

policies of that alien court. The religious nature of the

court, and of the order sent to the rabbi in New Jersey, gives

further reason to avoid this foreign-relations issue.

Furthermore, plaintiff is demanding that defendants

litigate the actions in and by an Israeli rabbinical court in "a

foreign nation's judicial system." Id. at 114, 107 S. Ct. at

1033, 94 L. Ed. 2d at 105. "The unique burdens placed upon one

who must defend oneself in a foreign legal system should have

significant weight in assessing the reasonableness of stretching

the long arm of personal jurisdiction over national borders."

Ibid. Finally, "the burden on the defendant[s] in this case is

severe" because plaintiff demands that they "traverse the

distance" between Israel and New Jersey. Ibid.

"When minimum contacts have been established, often the

interests of the plaintiff and the forum in the exercise of

jurisdiction will justify even the serious burdens placed on the

alien defendant." Id. at 114, 107 S. Ct. at 1033, 94 L. Ed. 2d

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105-06. Here, the interests of plaintiff and New Jersey do not

justify that burden. Plaintiff alleges that defendants' false

statements beginning in 2010 have caused plaintiff damages,

including loss of his business in 2011, lessened reputation in

his community, and reluctance of others to associate with him.

However, his October 26, 2012 complaint does not specifically

allege damages from the July 17, 2012 Rabbinical Court order.

Further, the religious nature of the order's proscriptions makes

unclear whether it has resulted in secular damages that the

courts of New Jersey can recompense.

Moreover, plaintiff's claim that defendants made false

statements to the Rabbinical Court gives that court "a

particular interest" in this dispute, while New Jersey's

interest is more "attenuated." See Washington, supra, 216 N.J.

Super. at 29 ("The fact that a nonresident lawyer's alleged

malpractice affected clients who happen to live in the forum

state has not been considered a dominant jurisdictional

factor."). Determining whether defendants made

misrepresentations to the Rabbinical Court turns largely on

witnesses and evidence located in Israel. See id. at 28-29.

Further, the Rabbinical Court order indicates that plaintiff's

status as a "criminal" may depend on Israeli rabbinical law.

Ibid.

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"Considering the international context, the heavy burden on

the alien defendant," the fact that their alleged misconduct

occurred while litigating in an alien court, "and the slight

interests of the plaintiff and the forum State," Asahi, supra,

480 U.S. at 116, 107 S. Ct. at 1034, 94 L. Ed. 2d at 107, I am

"'unwilling[] to find the serious burdens on an alien defendant

outweighed by minimal interests on the part of the plaintiff or

the forum State.'" Waste Mgmt., supra, 138 N.J. at 122 (quoting

Asahi, supra, 480 U.S. at 115, 107 S. Ct. at 1034, 94 L. Ed. 2d

at 106).